Roseberg Holding Co., Inc., Respondent, v. Isadore Berman, Appellant, Impleaded with Max Jurow, Defendant

Roseberg Holding Co., Inc., Respondent, v. Isadore Berman, Appellant, Impleaded with Max Jurow, Defendant. Second Department, October 16, 1925. Depositions — examination of defendant before trial —• answer cannot be stricken out for failure of defendant to obey notice for examination. The court has no power to strike out an answer as a penalty for the failure of a defendant to obey a notice for his examination before trial, and it was error,. therefore, for the court to strike out the defendant’s answer on that ground. Appeal by the defendant, Isadore Berman, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Bangs on the 2d day of June, 1925, granting plaintiff’s motion to strike out said defendant’s answer, and also from an order entered in said clerk’s office on the 16th day of June, 1925, denying said defendant’s motion for reargument. Benjamin Koenigsberg, for the appellant. I. J. Qinsberg, for the respondent. [MAJORITY — Kelly, P. J.:] Kelly, P. J.: The learned Special Term has granted plaintiff’s motion to strike out the answer of the defendant, appellant, because of defendant’s alleged failure to obey a notice for his examination before trial, in the county of Kings. It appeared by affidavit of defendant’s attorney that defendant claimed that he was a resident of New York county. The court at Special Term held that the affidavit of the attorney was not sufficient to show the residence of defendant and granted the motion to strike out his answer. In Levine v. Moskowitz (206 App. Div. 194) the First Department, Appellate Division, reversed an order striking out defendant’s answer for failure to appear for examination before trial and denied the motion, holding that there was no statutory authority for such procedure, and that the court would not substitute a penalty which the Legislature has omitted to prescribe. (See, also, Altkrug v. Title Guarantee & Trust Co., Kings County Special Term, N. Y. L. J., April 25, 1924, Carswell, J.) The court in a proper case might stay the defendant’s proceedings, but this might not be of much service to the plaintiff. The order granting plaintiff’s motion to strike out the answer of defendant, appellant, should be reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Rich, Manning, Young and Kapper, JJ., concur. Order granting plaintiff’s motion to strike out the answer of defendant, appellant, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.